RENDERED: NOVEMBER 13, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1023-MR
DANIEL GRANT PRICE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NO. 17-CR-01373
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
DIXON, JUDGE: Daniel Grant Price appeals his Fayette Circuit Court conviction
of possession of a handgun by a convicted felon.1 After careful review of the
briefs, record, and the law, we affirm.
1
Kentucky Revised Statutes (KRS) 527.040.
FACTS AND PROCEDURAL BACKGROUND
On October 20, 2017, the Lexington Police Department received a call
of shots fired at an apartment complex. Witnesses identified Price as being the
shooter and leaving in a blue truck. While officers responded to this call, a second
call was received which resulted in police responding to a tobacco store a few
blocks away on Broadway. Price was at the Broadway location, and a handgun
was recovered from the passenger seat of a blue truck. Price was ultimately
arrested after being indicted on charges of being a felon in possession of a handgun
and two counts of wanton endangerment. The Commonwealth opted to proceed
solely on the handgun charge. At trial, the Commonwealth presented witness
testimony from four residents of the apartment complex, five law enforcement
employees, and a clerk of the Fayette Circuit Court.
Tracey Burt, a resident, testified that she heard gunshots, and when
she looked around a wall, saw Price shooting up the stairs, at what she did not
know. She then saw Price get into a blue truck owned by another resident of the
building known to Burt only as “Mr. P.” Burt indicated she did not know Price
personally, but knew that his mother lived in the complex. Burt recognized Price
from seeing him at the complex, and knew he went by the nickname “Dirty.”
When she heard the shots, Burt testified her main concern was the welfare of her
sister and niece who lived in the building behind where Price was shooting.
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Crystal Johnson, also a resident of the apartment complex, testified
she knew Price because he used to live across from her. She, too, heard the shots
on October 20, 2017, but did not see who fired them. Johnson denied telling police
that she had seen “Dirty” fire a handgun. Officer Padgett, who responded to the
apartment complex, refuted this testimony, stating Johnson gave a statement
identifying Price by this nickname.
John Smith2 stated he knew Price because Price used to date his
mother. Smith testified he saw Price holding a gun and leaving in a blue truck.
Portland Pringle, a twenty-year resident of the apartment complex,
testified he knew Price from when he lived there and from being a member of the
community. On October 20th, Pringle was about to leave the apartment complex
when he heard something. Price, who appeared to be intoxicated and was armed
with a gun, let himself into Pringle’s blue truck. Pringle testified that Price briefly
pointed the gun at him, but then stowed it underneath the seat of the truck. Pringle
then drove to the tobacco store on Broadway. When police responded to the
second call, Pringle consented to a search of his truck, and a handgun was
recovered from under the passenger seat. Pringle denied ownership of the gun.
2
Because the witness was a minor when these events occurred, a pseudonym is being used to
protect his privacy.
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Officers testified that the gun, as well as two .40 caliber shell casings
recovered from the apartment complex, contained no fingerprints. They also
testified that Price was not a known owner of the gun.3 Fayette County
Supervising Deputy Clerk Stephanie Ball testified that Price was convicted in
Fayette Circuit Court, Case No. 08-CR-00017, of felony possession of a controlled
substance in the first degree.
At the end of the Commonwealth’s case, Price moved for a directed
verdict, though he offered no basis in support thereof. The Commonwealth
opposed, and the trial court denied the motion.
Price was the only witness in his defense. He admitted being a felon
and that he was at the apartment complex on October 20, 2017, where people were
throwing fireworks, drinking, and shooting. He denied firing or possessing a gun
on that day. Price testified he walked to the tobacco store on Broadway.
At the end of the testimony, Price again made a summary motion for
directed verdict, which the court denied. The jury returned a verdict of guilt and
recommended a sentence of six years. On May 21, 2019, the trial court entered its
final judgment/sentence of imprisonment in accordance with the jury’s
recommendation, and this appeal followed.
3
As a matter of course, gun tracing allows law enforcement to locate an initial purchaser (in this
case, the Detroit Police Department); however, official records are not kept for secondary market
transactions.
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ANALYSIS
Price argues the trial court erred by: (1) denying his motion for a
directed verdict; (2) granting the Commonwealth’s motion in limine to exclude
testimony regarding any prior acts of violence or threats involving Price and his
ex-girlfriend or her son; and (3) allowing testimony regarding Price’s prior
conviction for possession of a controlled substance in the first degree during the
guilt phase of the trial. We will address each argument in turn and will introduce
additional facts as necessary.
DIRECTED VERDICT MOTION
KRS 527.040(1) provides, “A person is guilty of possession of a
firearm by a convicted felon when he possesses, manufactures, or transports a
firearm when he has been convicted of a felony[.]” Price argues the
Commonwealth failed to establish that he ever possessed a firearm and, therefore,
the trial court erred in denying his motions for directed verdict. We disagree.
As an initial point, Price asserts this claim was preserved by defense
counsel’s oral motion at the end of the Commonwealth’s case and the renewed
motion at the close of trial. The Commonwealth argues the claim was not
preserved, noting that defense counsel offered no basis in support of the motions.
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Should this Court hold that the claim is not preserved, Price has alternatively
requested palpable error review pursuant to RCr4 10.26.
CR5 50.01 states, in pertinent part, “[a] motion for a directed verdict
shall state the specific grounds therefor.” Kentucky courts have applied CR 50.01
to criminal cases and have held that its requirement of “specific grounds” must be
followed to preserve for appellate review the denial of a motion for directed verdict
of acquittal. Pate v. Commonwealth, 134 S.W.3d 593, 597-98 (Ky. 2004); Daniel
v. Commonwealth, 905 S.W.2d 76, 79 (Ky. 1995). See also Hicks v.
Commonwealth, 805 S.W.2d 144, 148 (Ky. App. 1990).
Herein, at the close of the Commonwealth’s case, defense counsel
merely stated, “Motion for directed verdict. That’s it.” At the close of evidence,
defense counsel again said, “Motion for directed verdict.” Counsel’s token attempt
at making the motion is nearly indistinguishable from the conduct deemed
inadequate for preservation in Pate. 134 S.W.3d at 597. Accordingly, this claim is
not preserved, and we will review it only for a palpable error that affected Price’s
substantial rights and resulted in manifest injustice. RCr 10.26.
Upon review of the record, we have determined Price has failed to
demonstrate that the trial court committed a palpable error in denying his motion
4
Kentucky Rules of Criminal Procedure.
5
Kentucky Rules of Civil Procedure.
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for directed verdict. The Commonwealth presented three witnesses, each of whom
testified they saw Price with actual possession of a firearm. Additionally, one
witness, Pringle, linked the recovered handgun to Price. Price asserts the
Commonwealth’s witnesses were unreliable; however, in a motion for directed
verdict, trial courts must assume the evidence for the Commonwealth is true and
reserve the issue of credibility and weight for the jury. Commonwealth v. Benham,
816 S.W.2d 186, 187 (Ky. 1991). Because the Commonwealth provided evidence
to support the possession requirement of the charge, this claim fails.
MOTION IN LIMINE
As noted above, Price was also indicted on two counts of wanton
endangerment. These charges arose from Price allegedly discharging the firearm
near Coleman, his ex-girlfriend, and Smith, Coleman’s son. The Commonwealth
opted not to proceed on these charges and, prior to trial, moved generally to
exclude testimony regarding prior acts of violence and threats between Price and
Coleman and Smith. Additionally, the Commonwealth sought specifically to
exclude testimony that, on the same night, Smith followed Price to the store on
Broadway and attacked him with a bat resulting in Smith being charged in juvenile
court.
In its motion in limine, the Commonwealth argued this line of
testimony was irrelevant to the lone charge of possession of a handgun by a
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convicted felon. Price opposed the motion, asserting the testimony was admissible
under KRE6 611 and Davis v. Alaska7 as it went toward Smith’s credibility and
motive to lie. The trial court granted the motion in limine.
On appeal, Price argues the testimony of Coleman regarding her
strained relationship with Price, as well as the testimony of Smith about their fight
that night, was essential in showing that Smith had a motive to lie about Price
having a gun. Thus, Price asserts the trial court abused its discretion and violated
his constitutional rights to due process, a fair trial, and to call and confront
witnesses. U.S. CONST. amend. V, VI, XIV; KY. CONST. §§ 2, 11. The
Commonwealth asserts the trial court did not err as the contested testimony was
not relevant to the charge of felon in possession of a handgun.
Both parties agree this claim was preserved. The standard of review
on evidentiary issues is abuse of discretion. Clark v. Commonwealth, 223 S.W.3d
90, 95 (Ky. 2007). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
6
Kentucky Rules of Evidence.
7
Counsel did not include a citation, but it is the assumption of this Court that counsel was
referring to 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).
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As an initial point, Price has characterized the trial court’s ruling as
having precluded him from calling Coleman as a witness. This is inaccurate. The
parties were merely constrained from eliciting testimony regarding prior acts of
violence or threats, not from calling specific witnesses. Indeed, at trial, defense
counsel was asked more than once if she intended to call Coleman as a witness, yet
Coleman did not testify in these proceedings. Accordingly, the sole issue before
this Court is whether Price was wrongfully precluded from eliciting testimony
regarding his tumultuous relationship with Coleman and Smith’s assault of him to
establish a motive or bias for Smith’s testimony.
Price correctly asserts the Sixth Amendment Confrontation Clause
goes beyond merely allowing cross-examination as to the elements of the charge.
“[T]he exposure of a witness’ motivation in testifying is a proper and important
function of the constitutionally protected right of cross-examination. Accordingly,
the Sixth Amendment right to confrontation must be analyzed whenever the
accused is prohibited from cross-examining a witness about his motive or bias.”
Commonwealth v. Armstrong, 556 S.W.3d 595, 602 (Ky. 2018) (citations omitted);
see also Beaty v. Commonwealth, 125 S.W.3d 196, 206 (Ky. 2003) (“[T]he
Confrontation Clause is only implicated if the excluded cross-examination
concerns a matter giving the witness reason to testify falsely during the trial at
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hand, e.g., when the witness bears some animus toward, or is biased against, the
defendant.”).
To assert a violation of the Confrontation Clause, Price must show
that: (1) he was prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of the witness
from which the jury could draw inferences relating to the reliability of the witness;
and (2) “[a] reasonable jury might have received a significantly different
impression of [the witness’s] credibility” had Price’s counsel been permitted to
pursue the proposed line of cross-examination. Armstrong, 556 S.W.3d at 602-03.
A violation does not occur where the excluded evidence supports an inference of
bias based on mere speculation. Id. at 603.
The Supreme Court of Kentucky has held that a trial court abuses its
discretion in prohibiting testimony regarding a history of hostility between a
witness’s family and the defendant’s family as it is relevant evidence to establish
the witness’s motive in testifying. Barrett v. Commonwealth, 608 S.W.2d 374, 276
(Ky. 1980). Herein, the excluded testimony of a history of threats and violence
among Smith, his family, and Price is similar in nature to that in Barrett and
demonstrates more than a mere speculation of Smith’s animus towards Price. As it
is conceivable that this testimony could provide a bias or motive for Smith to
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testify falsely, the excluded testimony is relevant evidence, and Price has met the
first criterion to establish a violation.
Further, as Smith’s credibility went unchallenged at trial, the Court
cannot say that the introduction of evidence of a strong animus against Price would
not have left a reasonable jury with a significantly different impression of his
credibility. Thus, Price has met the second criteria, and we are persuaded the trial
court abused its discretion in excluding the relevant testimony.
Nevertheless, reversal is not required where the error is harmless
beyond a reasonable doubt. Armstrong, 556 S.W.3d at 604. An error is harmless
where there is no reasonable possibility the exclusion of the evidence might have
contributed to the conviction. Herein, two other witnesses, unrelated to Coleman
or Smith, testified they saw Price with a handgun. Pringle, the witness who drove
Price to Broadway, actually had an up-close and prolonged view of both Price and
the handgun. The only evidence offered in opposition was Price’s denial.
Therefore, even if the jury outright rejected Smith’s testimony as the product of
bias, we cannot say that a reasonable possibility exists that the jury would have
found Price not guilty.
PRIOR CONVICTION
Price argues he was denied due process and a fair trial when the trial
court permitted the Commonwealth to introduce testimony that he was previously
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convicted of possession of a controlled substance in the first degree. Price relies
on the holdings of Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L.
Ed. 2d 574 (1997), and Dickerson v. Commonwealth, 174 S.W.3d 451 (Ky. 2005),
that a court errs in denying a defendant’s stipulation to their status as a felon. The
Commonwealth disagrees because Price neither requested a stipulation nor entered
an admission.
The parties agree this claim is not preserved. Accordingly, we will
review it only for a palpable error that affected Price’s substantial rights and
resulted in manifest injustice. RCr 10.26.
The Supreme Court of Kentucky held in Anderson v. Commonwealth,
281 S.W.3d 761, 765-66 (Ky. 2009), that upon request of the defendant, a
stipulation or admission, as appropriate, to the status as a felon should be
permitted. However, the Commonwealth is correct in stating the record does not
indicate that Price requested a stipulation or admitted to having a prior felony.
Consequently, the Commonwealth was required to offer proof of the prior felony
conviction as a necessary element to prove the crime charged. Accordingly, the
trial court did not err, and this claim fails.
CONCLUSION
Therefore, and for the foregoing reasons, the final judgment/sentence
of imprisonment of the Fayette Circuit Court is AFFIRMED.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Daniel Cameron
Kayla D. Deatherage Attorney General of Kentucky
Frankfort, Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
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